9911796707
TMI Blog2016 (1) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... vestment on account of introduction of capital by the partner, the assessee, at this stage, has produced certain documents by way of additional evidence to demonstrate that the partners are having sufficient source to introduce the capital. Similarly, assessee has produced details of property tax in respect of rental income. We further find on a perusal of the order of the learned Commissioner (Appeals) that he has not at all considered the written submissions claimed to have been filed by the assessee, a copy of which has been submitted before us by way of additional evidences. Therefore, considering the fact that the assessment was completed under section 144 of the Act making certain additions / disallowances and at this stage the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners necessary papers / documents required for filing the appeal could not be obtained by the new partners which resulted in delay in filing the appeal. In this context, learned counsel has drawn our attention to the affidavit of the partner at Page 32 of the paper book. He, therefore, submitted that delay caused being for genuine reasons should be condoned. 3. The learned Departmental Representative has opposed condonation of delay. 4. We have considered the submissions of both the parties. As it emerges from the facts on record, there is change in the constitution of the partnership firm frequently during the assessment year 2007 08 and 2008 09, as a result of which old partners retired and some new partners came in. It is also obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. Further the sum of ₹ 14,22,114/- though offered as taxable income can not form part of taxable income as this sum represents only difference on revaluation. 3. That the learned Commissioner of Income Tax Appeals has further erred in confirming the disallowance of property tax and repair cess of ₹ 2,16,680/- and ₹ 1,33,058/- respectively against income from house property, without providing proper opportunity of being heard. 6. In addition, assessee has raised the following additional grounds: ADDITIONAL GROUND i) On the facts and in the circumstances of the case and in law, the assessment order passed under section 144 of the Act is invalid and bad in law. ii) On the facts and in the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner (Appeals). 9. The learned Commissioner (Appeals) also confirmed the additions made by the Assessing Officer observing that assessee has failed to establish its claim. 10. Learned Counsel for the assessee submitted before us that the Assessing Officer has completed the assessment ex parte under section 144 of the Act without giving proper opportunity of being heard to the assessee. He submitted, none of the notices issued were actually served on the assessee. He submitted, as the assessee was not given proper opportunity, he could not furnish necessary evidence with regard to the relevant issues on which the additions have been made by the Assessing Officer and sustained by the learned Commissioner (Appeals). The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additions / disallowances made by the Assessing Officer are either on estimate basis or for the reason that supporting evidences are not available. The learned Commissioner (Appeals) has also confirmed the additions / disallowances more or less accepting the reasoning of the Assessing Officer by observing that assessee has not produced any evidence to support its claim. As far as the addition of ₹ 30,50,000, as unexplained investment on account of introduction of capital by the partner, the assessee, at this stage, has produced certain documents by way of additional evidence to demonstrate that the partners are having sufficient source to introduce the capital. Similarly, assessee has produced details of property tax in respect of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c) of the Act. 16. While deciding assessee s appeal in ITA no.7524/Mum./2011, we have set aside the entire matter to the file of the Assessing Officer for denovo assessment. As the additions on the basis of which penalty was imposed under section 271(1)(c) of the Act no longer exist, the entire matter having been restored back to the file of the Assessing Officer for denovo assessment, the penalty imposed under section 271(1)(c) cannot also survive. Accordingly, we set aside the impugned order of the learned Commissioner (Appeals) and delete the penalty. However, we make it clear, it is open to the Assessing Officer to initiate penalty proceedings under section 271(1)(c), if warranted, after completion of assessment. 17. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
